Border Agency Chief Opens Up About Deadly Force Cases

U.S. Customs and Border Protection Commissioner R. Gil Kerlikowske sits under an image of New York's Ground Zero in his office in Washington. For him, it serves as a daily reminder of the security threats that have shaped his agency.

Kainaz AmariaNPR

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Originally published on July 26, 2014 4:18 pm

The new commissioner of U.S. Customs and Border Protection says he is reviewing scores of incidents in which agents have used deadly force.

R. Gil Kerlikowske made that statement during an exclusive interview with NPR's Morning Edition. It was his first extended conversation about controversial incidents in which the Border Patrol has killed civilians without apparent accountability. (Click here for a full transcript of the interview.)

Kerlikowske says his newly appointed deputy in charge of internal affairs "currently has a process to review" all 67 uses of deadly force listed in a report commissioned by the agency. He also pledged a review of other cases highlighted by NPR News, including a 2010 killing of a Mexican teenager — a shooting the agency said was justified.

"I can promise you on these cases involving force and the reviews that are going on that we will be following through," Kerlikowske says. "I'll be examining these with a group of people here in CBP, leadership within the Border Patrol and others that are just as absolutely concerned as I am at getting things resolved.

"This has built up over quite a bit of time," he adds, "and it's going to take a little time to resolve it."

Kerlikowske has made a priority of opening up an agency that is famous — some would say notorious — for its reluctance to provide information to the public. "Frankly, we need to be better at admitting when we're wrong or where we've made a mistake," he says. "There is a certain sense in law enforcement that if we just keep our heads down, all of this will go away — meaning media scrutiny and nongovernmental organizations. That doesn't happen."

Decades In Law Enforcement

Kerlikowske was appointed by President Obama and was confirmed by the Senate in March. Upon moving into his new office in Washington, he chose to leave up decorations that a predecessor had hung on the walls: four huge aerial photos of New York's ground zero after the Sept. 11, 2001, attacks.

The photos are vivid reminders of pressure the Border Patrol faces in securing the U.S. frontier.

But Kerlikowske brings an added sensibility to the job. He was once chief of police in Buffalo, N.Y., and Seattle, and in our talk, he referred often to the lessons of his "40 years of experience." He described his management of violent incidents on the streets of Seattle; he believed his officers were better able to keep the peace when they shed helmets and armor, engaging crowds in a closer, low-key style. (Click here to hear Kerlikowske reflect on how this shaped his leadership.)

Now, Kerlikowske's portfolio includes the agents who guard thousands of miles of frontier, across deserts, mountains and cities.

He knows well that some people along the U.S.-Mexico border might wish they could be guarded from the Border Patrol.

Controversial Shootings

In several recent reports, NPR has detailed the most controversial shootings.

Kerlikowske told NPR that extended silences are "not acceptable," though border investigations can be complex when they involve multiple agencies.

"There's no reason that within 24 hours a senior member of the Border Patrol can't give a fairly detailed description to the best of their knowledge of what occurred," he says. His internal affairs division is working on implementing such a rule, which he had previously imposed in Seattle.

A Supersized Agency

The commissioner suggests his agency expanded too quickly after the Sept. 11 attacks, when it nearly doubled to a roster of more than 20,000 agents.

"The money was provided, people were hired very quickly, and at times that can cause difficulties, as we know from other agencies across the country," he says.

Now he wishes to expose the agency's flaws as well as strengths to public view.

He says the Border Patrol is experimenting with body-mounted cameras that would record encounters with civilians. He expects this will be one of several reforms that will hold agents accountable — or exonerate them — as they have in some municipal police departments.

A Pledge To A Mexican Mother

Some Border Patrol shootings have already been caught on video, such as a 2010 killing on the border at El Paso, Texas. An agent shot 15-year-old Sergio Adrian Hernandez Guereca, who stood just across the border in Juarez, Mexico.

The Border Patrol said the agent was threatened by rock throwers, though both the video and the agent's initial report showed Guereca standing up to 75 feet away.

This case recently returned to the news when a federal appeals court said Guereca's family can sue the agency. The federal government had previously claimed the family could not sue because Guereca was standing on Mexican soil.

Kerlikowske expressed concern about a "chilling effect" from the ruling, and that it may be overturned on appeal.

NPR had previously interviewed the teenager's mother, Maria Guereca of Juarez. When we met the commissioner, we posed a question from Guereca: "I would like to know if you're going to help us with our case, if you're going to follow through."

"We will be following through," Kerlikowske answered. "And I would promise you that I would — or I would promise her — that I would certainly see the results of those cases made more open and more visible."

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Transcript

DAVID GREENE, HOST:

On a Friday, this is MORNING EDITION from NPR News. I'm David Greene.

STEVE INSKEEP, HOST:

And I'm Steve Inskeep. The man overseeing the U.S. border patrol has set unusual goal.

GIL KERLIKOWSKE: Frankly, we need to be better at admitting when we're wrong or where we've made a mistake.

INSKEEP: Gil Kerlikowske is the new commissioner of Customs and Border Protection.

GREENE: He tells NPR he is reviewing scores of incidents in which the border patrol used deadly force. The cases have led to questions about border patrol secrecy.

INSKEEP: That's especially true when the border patrol kills a civilian. Dozens have been killed in the last decade. And years may pass without a conclusion that a shooting was right or wrong. This week, Gil Kerlikowske sat down with us for his first extended interview on the use of force.

KERLIKOWSKE: There is a certain sense in law enforcement that if we just keep our heads down, all of this will go away, meaning media scrutiny and nongovernmental organizations. That doesn't happen.

INSKEEP: Gil Kerlikowske oversees agents who guard thousands of miles of frontier; cutting across deserts, mountains, and cities. He's a former police chief in Buffalo, and Seattle. This spring, he moved into his new federal office. It's decorated with art left behind by his predecessor, four huge aerial photos of New York's Ground Zero after 9/11. It's a reminder of threats the agency faces. Some agents are accused of becoming threats themselves.

INSKEEP: We are hearing video from 2012. It's the aftermath of a shooting on the Texas border. In dozens of instances like this, agents face criticism for shooting unarmed civilians. Each incident is different, but they all implicate an agency in transition. Kerlikowske says, before 9/11, the border patrol expanded slowly and carefully. Authorities wanted to make sure that new agents were properly screened, and properly trained.

KERLIKOWSKE: Unfortunately, that was not the decision made a number of years ago.

INSKEEP: 2004, 2005 you're now talking about.

KERLIKOWSKE: Exactly. People were hired very quickly, and, at times that can cause difficulties.

INSKEEP: The border patrol nearly doubled in size to more than 20,000 agents. That added to the challenge of training agents, and holding them accountable. The tension was evident when our reporter John Burnett visited the agency's training academy. He asked how agents are trained to use force against people throwing rocks. A spokesman intervened.

JOHN BURNETT, BYLINE: What are the hierarchy of responses to rock throwers?

UNIDENTIFIED WOMAN: We're not going to discuss the hierarchy, or...

BURNETT: First action, second action, third action?

WOMAN: ...OK that's it. That's it.

INSKEEP: That exchange in April is what prompted us to visit the agent's boss. We asked the commissioner the identical question. His answer emphasized, not using force at all, even if agents feel threatened.

What's the hierarchy of responses? What are they trained to do first, second, third?

KERLIKOWSKE: Well, let me tell you what I've addressed with border patrol agents. I have said to them three things. There is no apprehension of a person. There is no seizure of any amount or type of drug. And there is no pursuit that is worth you becoming injured. And I think that comes from the experience of 40 years in law enforcement. There will be another day to arrest someone.

INSKEEP: Traditional training calls for a hierarchy of responses for agents to defend themselves. Start with a less lethal baton, say, and later pull out a gun. Kerlikowske would rather that agents think of getting out of danger. When they must shoot, transparency becomes vital. It's been a problem in the past.

In some cases, two or three years or more, without a response from federal authorities about whether a shooting was justified or not justified. Is that an acceptable length of time to wait?

KERLIKOWSKE: No, it's not an acceptable time.

INSKEEP: He explains it's hard to coordinate the many U.S. and Mexican agencies that investigate a shooting.

KERLIKOWSKE: But there's no reason that within 24 hours a senior member of the border patrol can't give a fairly detailed description to the best of their knowledge of what occurred. When I was in Seattle, I started that process after every use of deadly force, to hold a press conference within 24 hours. That did not go over particularly well, at first.

INSKEEP: And it's not certain how that reform will go over at the border patrol. A new head of internal affairs is working on putting that 24-hour hour rule into place. New rules aside, the agency faces a new legacy of old and controversial cases. Consider a shooting in 2010. An agent fired across the border from El Paso, Texas to Juarez, Mexico.

(SOUNDBITE OF GUN SHOT)

INSKEEP: That's from video taken as the agent shot a teenager on the Mexican side. The border patrol said the agent was threatened by rock throwers, though the initial report said the teen was up to 75 feet away. This case recently returned to the news. The teenager's family sued in a U.S. court. The United States blocked that suit, saying that since the teenager died in Mexico, U.S. law does not apply. But an appeals court said otherwise. The agent can be sued. He expressed concern about that ruling.

KERLIKOWSKE: I don't believe that any criminal charges were ever brought against that agent. I believe that they were declined by a variety of state, and local, and federal prosecutors. But the civil liability issue can have a chilling effect when you're sued individually.

INSKEEP: Well, that's interesting you mention that. I did see statements from federal prosecutors, among others, that there were no violations of federal law. But that seems to have been under an interpretation that federal law doesn't apply when an agent shoots across the border into Mexico. You now have a situation where an appellate court has found that actually, federal law can apply in that situation. The quote was that, "no reasonable officer would have understood the border patrol agents conduct to be lawful". Isn't that a troubling thing to read in a - in an appellate court ruling?

KERLIKOWSKE: I think that is troubling. But I also recognize that this probably is not the last review by an appellate court on this case.

INSKEEP: We asked if the border patrol now accepts that federal law applies when agents shoot across the border. Kerlikowske said, it depends. He did say border patrol rules for using force always apply. We reminded the commissioner we'd been talking with the mother of the teenager who was killed in 2010.

And I reached out to her again this week. I said, I'm going to talk to the commissioner of the CBP, and he's a new guy, and he's made transparency and openness key. And he's focusing on use of force. Do you have anything you want to ask him? And she sent word back. And this was her question - she just said, I would like to know if you're going to help us with our case, if you're going to follow through.

KERLIKOWSKE: I can promise you on these cases involving force and the reviews that are going on, that we will be following through. And that I'll be examining these with a group of people here in CBP - leadership within the border patrol and others - that are just as absolutely concerned as I am at getting things resolved. At being more open to the public, and the people we serve about what our actions are. But I would also tell you, that this is built up over quite a bit of time, and it's going to take a little time to resolve it.

INSKEEP: Will you look again at that specific case, which was declared closed, at least, as far as CBP was concerned?

KERLIKOWSKE: That will be one of the cases of the many that have been talked about. And I would promise you that - or I would promise her - that I would certainly see the results of those cases made more open, and more visible.

INSKEEP: Commissioner Gil Kerlikowske says he's just getting started on transparency. Agents are testing out body cameras that would record incidents in the field. Experience elsewhere shows cameras often exonerate officers accused of wrongdoing.

KERLIKOWSKE: I've known a number of law enforcement officers that have used deadly force, and taken somebody's life in the line of duty. There is a toll and a responsibility that stays with them forever. No one that I've ever worked with in 40 years goes to work in the morning and said, gee I hope I have a chance today to use my firearm.

INSKEEP: The new commissioner of Customs and Border Protection wants border patrol agents to tell more of their story. That may expose wrongdoing, but may also show thousands of agents doing a tough job well.

KERLIKOWSKE: I'll tell you, I'm a huge admirer of what the border patrol agents are doing.

INSKEEP: And that is some of what Gil Kerlikowske told us in an extended talk. Elsewhere, in today's program what Kerlikowske learned about using force from past experience policing riots in Seattle. We've put a full transcript of our talk npr.org. It's MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.